Johnson v. Com.

• Decision Date: 19 March 2002
• Docket Number: Record No. 0929-01-1.
• Citation: 561 S.E.2d 1,37 Va. App. 634
• Court: Virginia Court of Appeals
• Parties: Mark B. JOHNSON v. COMMONWEALTH of Virginia.

561 S.E.2d 1

37 Va. App. 634

Mark B. JOHNSON v. COMMONWEALTH of Virginia.

Record No. 0929-01-1.

Court of Appeals of Virginia, Chesapeake.

March 19, 2002.

Brien A. Roche (Eric David Kessel; Johnson & Roche, on briefs), McLean, for appellant.

Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: Judges ELDER, FRANK and HUMPHREYS.

FRANK, Judge.

Mark B. Johnson (appellant) was convicted in a bench trial of interfering with the operation of an aircraft, a misdemeanor, in violation of Code § 5.1-22. On appeal, he contends the trial court erred in: (1) finding Code § 5.1-22 does not require a specific intent to interfere; (2) finding the evidence was sufficient to convict; (3) not finding Code § 5.1-22 is unconstitutionally vague. For the reasons stated below, we affirm the conviction.

I. Background

On November 1, 2000, police pilot H.J. Alverez was operating a helicopter in the Magic Hollow area of the City of Virginia Beach, searching for a convenience store robber. The helicopter flew at an altitude of 800 feet. Military aircraft constantly fly in this same area.

Alverez testified that, as he was searching for the robber, suddenly "the whole cockpit got illuminated; and I thought it might have been an aircraft coming at us so I veered away from it. It turned out to be somebody on the ground was shining a light—a spotlight on the helicopter."

Alverez changed his flight path because he "didn't want to get blinded by the light." At trial, Alverez stated he initially was in a "left orbit," travelling in a left hand circle so his flight officer could view the ground and spot the robber. The light came from the left side of the helicopter and from the "chin bubble," a clear plexiglass area below the pilot's feet. Alverez admitted the light from the ground did not cause him to crash or to have a "near crash." He never lost control of the helicopter.

Alverez instructed his flight officer to find the source of the light. Officer R.S. Renner, in a ground unit, was sent to investigate. The officer approached appellant's house and saw appellant with a spotlight in his hand, which was aimed at the helicopter. A cigarette lighter in appellant's vehicle was the power source for the light.

Appellant complied with Officer Renner's request to turn off the light. The officer described the light as a "million candlelight spotlight." When asked why he was shining the light, appellant responded the noise of the helicopter kept him awake and "he was trying to get the number off the aircraft." Renner indicated the helicopter had been overhead "about 15 minutes," moving in a circular path.

Appellant testified that, on the night in question, he and his wife were awakened at approximately 11:40 p.m. by loud, "incessant" aircraft noise that caused the whole house "to shake." For several weeks prior to this incident, appellant and his wife had been suffering from sleep deprivation due to aircraft and helicopter noise. Upon complaining to the Federal Aviation Administration and the United States Navy, appellant was advised that neither governmental body could investigate the complaints without obtaining certain information about the aircraft, such as identifying call letters, or, in the case of helicopters, the number of propeller blades.

Mrs. Johnson testified that, after hearing the noise for a period of twenty minutes on the evening of November 1, appellant went outside to investigate and identify the offending aircraft, so he could lodge a complaint with the proper authorities. Appellant pointed a marine navigational light, used in sighting water obstructions, at the helicopter in an attempt to identify the aircraft.

Appellant testified the light did not improve his view. He could not see any "identificational [sic] marks, any numbers." He could not determine the number of rotor blades or determine its color. He could not determine that it was a police helicopter. Appellant denied any intention to interfere with the operation of the helicopter.

Appellant said when the helicopter disappeared behind the trees, he would turn off the light. When it re-appeared, he would again turn the light on. This on-and-off process lasted approximately one and a half minutes.

Dr. David Shaw Wright, an expert in measuring the physical qualities of light, testified that the intensity of the light used by appellant would diminish with distance. According to Wright's measurements, at 800 feet from the source, the light would have an intensity of 3.3 lux,¹ approximately the same illumination as the low-beam headlight of an automobile at 129 feet or the illumination at three feet away from a computer screen. Dr. Wright also gave other comparisons to illustrate the measurement of illumination: full moonlight, .4 lux; a streetlight, 20 lux; light in the particular courtroom, 1000 lux. He indicated one needs at least 500 lux to be able to read.

Dr. Wright had attempted to replicate the November 1 incident by flying in a helicopter at 800 feet.² He testified the highest reading he took during this simulation was 3.3 lux. When the ground light shone in his face, Dr. Wright said the light had no impact on him. According to Dr. Wright, the light "did not seem" to have an effect on the helicopter pilot.

Rick Smith, a helicopter pilot, testified that he was a passenger in the helicopter during Dr. Wright's recreation. He indicated that, although he looked directly at the ground, the light had no effect on him. The pilot also had no reaction to the light. Smith opined that such light could not have interfered with the police mission.

At the beginning of the trial, appellant's counsel presented a memorandum³ to the trial court, which, according to the trial transcript, argued that Code § 5.1-22 is a specific intent offense. The trial court ruled this code section creates a general intent crime. At the conclusion of the Commonwealth's case, appellant moved to strike the evidence. At the conclusion of all the evidence, appellant renewed his motion to strike and, for the first time, argued Code § 5.1-22 was unconstitutionally vague. The trial court denied the motions.

II. Specific Intent

Code § 5.1-22 reads:

Any person who interferes with or threatens to interfere with the operation of any aircraft on or over the territory of this Commonwealth shall be guilty of a Class 1 misdemeanor. Where the act or acts of interference or threatened interference are of such a nature as to endanger the life of the aircraft's operator or the life of any other person, the person interfering or threatening to interfere shall be guilty of a Class 6 felony. Venue for the issuance of a warrant for the arrest and trial of any such person is hereby conferred upon any court having criminal jurisdiction in the political subdivision in this Commonwealth where the aircraft either took off prior to such offense, or where it lands or comes to rest subsequent to such offense, or in or over which the offense occurred.

Appellant argues this statute requires the Commonwealth prove, as an element of the offense, that a defendant had the specific intent to interfere with operation of an aircraft. We disagree.

"While we construe penal statutes strictly against the Commonwealth, `a statute should be read to give reasonable effect to the words used "and to promote the ability of the enactment to remedy the mischief at which it is directed." " Dillard v. Commonwealth, 28 Va.App. 340, 344, 504 S.E.2d 411, 413 (1998) (quoting Mayhew v. Commonwealth, 20 Va.App. 484, 489, 458 S.E.2d 305, 307 (1995) (quoting Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984))). In determining the elements established by such statutes, "[w]e may not add ... language which the legislature has chosen not to include." County of Amherst v. Brockman, 224 Va. 391, 397, 297 S.E.2d 805, 808 (1982). See also Saunders v. Commonwealth, 31 Va. App. 321, 326, 523 S.E.2d 509, 511 (2000)

; Adkins v. Commonwealth, 27 Va.App. 166, 170, 497 S.E.2d 896, 897 (1998). See, e.g., Stuart v. Commonwealth, 11 Va.App. 216, 217-18, 397 S.E.2d 533, 533-34 (1990) (refusing to find a specific intent element "because the unambiguous language" of the statute did "not require proof of a specific intent" to commit bigamy); Polk v. Commonwealth, 4 Va.App. 590, 594, 358 S.E.2d 770, 772 (1987) ("The resulting effect of the offender's threats ... is not an element of the crime defined in Code § 18.2-460. By the express terms of the statute, it is immaterial whether the officer is placed in fear or apprehension.").

Specific intent is not an implicit element of every statutory crime, but instead must be explicitly found in the statute's language in order to establish such intent as an element of an offense. See Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345 (1955)

("[W]here a statute makes an offense consist of an act combined with a particular intent, such intent is as necessary to be proved as the act itself, and it is necessary for the intent to be established as a matter of fact before a conviction can be had."); Hucks v. Commonwealth, 33 Va.App. 168, 175, 531 S.E.2d 658, 661 (2000) (explaining that the language of a statute determines what proof of intent is necessary for a conviction). See, e.g., Barnes v. Commonwealth, 33 Va.App. 619, 630-31, 535 S.E.2d 706, 712 (2000) (explaining that the felony-murder statute does not require the Commonwealth prove the accused had the specific intent to kill); Fleming v. Commonwealth, 13 Va.App. 349, 354, 412 S.E.2d 180, 183 (1991) (finding Code § 18.2-279, discharging a firearm at an occupied dwelling, is a general intent, rather than specific intent, crime). Interpretations that "rewrite statutes" are not permitted. Frias v. Commonwealth, 34 Va.App. 193, 199, 538 S.E.2d 374, 376 (2000).

When asked to interpret various code sections, this Court often examines other related statutes that contain similar or...